PERM labor certification and EB-2 / EB-3 employment-based immigration

Wang Law Firm, LLC · David Wang, Managing Attorney

Most employer-sponsored green cards first go through the U.S. Department of Labor's labor certification process, known as PERM (Program Electronic Review Management). Labor certification has to establish one thing: that after the employer publicly recruited for the position in the U.S. labor market as required, it could not find a U.S. worker who is able, willing, qualified and available, and that employing a foreign national won't adversely affect the wages and working conditions of similarly employed U.S. workers.

Once the labor certification is approved, the employer files an I-140 with USCIS, placed in EB-2 or EB-3 according to the job requirements, and the employee applies for the green card when the priority date is current. The whole process is employer-driven and takes a long time, but it is widely available and doesn't require the applicant to have outstanding achievements.

Who it suits

• Employees working in the U.S. on H-1B, L-1 or similar status whose employers are willing to sponsor a green card;
• People outside the U.S. who have a permanent, full-time job offer from a U.S. employer;
• People whose achievements aren't yet enough for EB-1A, and whose line of work doesn't easily support an NIW national importance argument;
• U.S. employers who want to sponsor green cards for foreign employees.

EB-2 vs. EB-3

The category depends on the minimum requirements of the position itself, and on whether the employee met them before the labor certification was filed, not on the employee's highest degree.

EB-2 and EB-3 backlogs vary by country of birth, and sometimes EB-3 moves faster than EB-2. An employee with an approved EB-2 I-140 can, in certain circumstances, have the employer file a second, EB-3 I-140 (commonly called a "downgrade") while keeping the original priority date. Whether it's worth it depends on that month's Visa Bulletin.

The full process

1. Define the position and requirements: the employer sets the job duties and minimum requirements based on genuine business needs. The requirements can't be tailored to the foreign employee, and can't exceed what is normal for the position.
2. Prevailing wage determination (PWD): the employer applies to the Department of Labor, which sets the prevailing wage for the position based on the job, its requirements and the worksite. The employer must commit to paying at least that wage.
3. Recruitment: public recruitment as required by the regulations. The basic steps include a 30-day job order with the state workforce agency, two Sunday newspaper ads in the local area, and posting the labor certification notice at the worksite. For professional positions (usually requiring a bachelor's degree or higher), the employer must also choose 3 more methods from those listed in the regulations, such as the company website, job search websites, campus recruiting or an employee referral program. The employer must review all applicants in good faith and keep records.
4. Waiting period and filing the ETA-9089: after recruitment ends there is a mandatory waiting period, and recruitment must also be completed within the time window the regulations set. The employer then files the ETA-9089 labor certification application electronically through the Department of Labor's system.
5. Department of Labor review: the Department of Labor may approve, deny or issue an audit. An approved labor certification is valid for 180 days, and the employer must file the I-140 within that period.
6. I-140: the employer files an I-140 with USCIS, showing that the employee meets the job requirements and that the employer has had the ability to pay the offered wage since the priority date. Premium processing is available for the I-140.
7. Green card: when the priority date is current, the employee files I-485 to adjust status in the U.S., or obtains an immigrant visa abroad through the National Visa Center and a U.S. embassy or consulate. See Adjustment of status (I-485).

For Department of Labor processing times at each stage, see the DOL FLAG processing times page; for USCIS fees and processing times, see How to check immigration filing fees and processing times.

Priority date

In the PERM route, the priority date is the date the Department of Labor receives the ETA-9089. Your place in the backlog is based on it. Once the I-140 is approved, you can in most cases keep this priority date even if you later change employers and go through PERM again (unless the I-140 is revoked for fraud or similar reasons). For how to read the backlog, see How to read the Visa Bulletin and the State Department's Visa Bulletin.

Employer obligations and who pays

• The employer must pay the labor certification costs. Under Department of Labor regulations, attorney's fees, recruitment advertising and other costs of obtaining the labor certification may not be paid by the employee, directly or indirectly (including through wage deductions or later reimbursement by the employee). Violations can lead to denial or revocation of the labor certification.
• For some costs at the I-140 and I-485 stages, the regulations don't require the employer to pay; the parties can agree, but this should be put in writing in advance.
• The employer must show a continuing ability to pay the offered wage from the priority date, usually through annual reports, federal tax returns or audited financial statements.
• The position must be genuine, permanent and full-time; after receiving the green card, the employee should genuinely take up the job.
• The employer must keep recruitment records, generally for 5 years, in case of audit.

Audits and supervised recruitment

The Department of Labor may audit a PERM application, requiring the employer to submit recruitment records, ads, the results for each applicant and so on. An audit significantly lengthens processing. In some cases, the Department of Labor may also require the employer to recruit again under its supervision (supervised recruitment). Carefully completing recruitment by the rules and keeping complete records is the key to handling an audit.

Documents you'll usually need

• Employer: company registration documents, financial statements or tax returns, organizational chart, job description, and recruitment ads and records;
• Employee: degree certificates, transcripts, a credential equivalency evaluation, and experience letters from past employers (stating the title, duties, start and end dates, and whether full-time or part-time);
• The employee's current status documents, such as passport, I-94, visa and H-1B approval notice;
• Complete English translations of non-English documents.

What happens if you change jobs

• Leaving before PERM or the I-140 is approved: the new employer usually has to start PERM over.
• Leaving after the I-140 is approved: you can generally keep the priority date, but the new employer has to go through PERM and the I-140 again. Once the I-140 has been approved for 180 days, it usually isn't automatically revoked even if the original employer withdraws it.
• Once the I-485 has been pending for 180 days: under AC21, you can move to a new position in a "same or similar occupation" without a new labor certification, but you need to submit the corresponding supplement (Supplement J) to USCIS.

Common mistakes and reasons for denial

• The employee paid labor certification costs.
• Job requirements tailored to the employee, such as a specific foreign language or an overly specific combination of skills, without proof of business necessity.
• Experience gained within the same company used to meet the job requirements in a way that doesn't satisfy the regulatory limits.
• Insufficient proof of work experience: experience letters missing required information, or inconsistent with the résumé.
• The employer can't prove ability to pay, for example a small company whose net income is below the offered wage with no other evidence.
• Errors in the recruitment process, such as ads run outside the required time window, or U.S. applicants not reasonably considered.
• Believing an agency can "provide an employer." Our firm doesn't offer that kind of service, and we urge you to be wary of anyone who promises to "guarantee an employer."

Common questions

Related reading

• H-1B specialty occupation visa
• NIW national interest waiver (no labor certification)
• How to read the Visa Bulletin
• U.S. Department of Labor: PERM program

This article is general information and is not legal advice. Laws and policies can change; rely on the latest official information and on an attorney's advice for your specific situation.